INSTRUCTIONS ON HANDLING INVALID LABOR CONTRACT
Image 1. How to handle invalid labor contracts.
- The current labor law has very specific provisions on the case of an invalid labor contract. At this time, what issues should employees and employers pay attention to? Let's find out with Thinh Tri Law.
OUTLINES
1. What is an invalid labor contract?
2. How to handle invalid labor?
2.1. For a partially invalidated labor contract.
2.2. For completely invalidated labor contract
- It can be understood that an invalid labor contract is a contract that does not fully meet the conditions for validity of the law. In other words, an invalid labor contract will not give rise to the rights and obligations of the employee and the employer.
- After receiving the Court's decision declaring the labor contract invalid, the employee and the employer must deal with the consequences of the invalid labor contract. Depending on the scope of invalidity and the grounds of invalidity, the handling of the contract will have different contents.
- In case the contract is partially invalidated, Clause 1, Article 51 of the Labor Code 2019 stipulates that the invalidated content will have to be amended and supplemented by other contents that do not violate the law. At this time, the parties in the labor relationship must replace the invalid content to comply with the law and the collective labor agreement.
- According to detailed instructions in Article 9 of Decree 145/2020/ND-CP, the agreement to amend and supplement content between the two parties may lead to the following two cases:
- Firstly, the parties agree on the amendment and supplementation of the following contents:
- The rights, obligations and interests of the two parties during the period from the beginning of the establishment of the labor relationship under the partially invalidated labor contract until this labor contract is amended and supplemented, will be settled in accordance with the provisions of this Collective Labour Agreement - the document expressing the agreement reached between the employer and the employee on general provisions for labor relations. In the absence of a collective labor agreement, the rights, obligations and interests of both parties will be implemented in accordance with the law.
- If the labor contract is partially invalidated because the salary paid to the employee is lower than the law or the collective bargaining agreement, the employer has the following responsibilities.
- Re-negotiate with employees on the salary level in accordance with the provisions of law and the collective labor agreement;
- Refund the difference between the salary in the partially invalidated labor contract and the agreed-upon modified and supplemented labor contract corresponding to the working time under the invalidated labor contract.
- Second, the parties do not agree on the amendment and supplementation of the following contents:
- If the parties do not agree on the amendment and supplementation of the contents of the labor contract, the labor contract shall be terminated. At this time, the rights, obligations and interests of the two parties from the time they start working under the labor contract are declared partially invalidated until the termination of the labor contract or in accordance with the law (if there is no collective labor agreement).
- The employer in this case must perform the responsibility to pay severance allowance according to the actual time the employee has worked for the employer and other responsibilities when terminating the labor contract at the Labor Code 2019.
- In addition to the above issues, the handling of relevant content will not be agreed upon but falls under the jurisdiction of the Court.
Image 2. Handling of completely invalidated labor contracts.
If the labor contract is completely invalidated, according to the provisions of Articles 10 and 11 of Decree 145/2020/ND-CP, it can be divided into two following cases:
- Firstly, the contract is invalid due to improper conclusion or violation of the principle of entering into a labor contract:
- If the contract is invalidated due to improper conclusion or violation of the labor contract principle, the two parties have the right to re-sign the labor contract.
- The two parties have the right not to re-sign the labor contract when it is invalidated due to improper conclusion or violation of the labor contract principle. At this time, the employer must pay severance pay and perform other responsibilities according to the 2019 Labor Code.
- Second, the contract is invalid because the content violates the law or the contracted work is prohibited by law:
- If the contract is invalidated due to illegal content or the contracted work is prohibited by law, the two parties must enter into a new labor contract (without agreeing on illegal content or prohibited work).
- Concurrently, both parties also have the right not to enter into a new labor contract when it is invalid due to illegal content or the contracted work is prohibited by law. At this time, in addition to the severance allowance and other responsibilities, the employer must also pay the employee an amount of money with the rate at least one month's minimum wage in the region x number of years working under the contract (minus the time when the employee participates in unemployment insurance or is paid severance allowance or job loss allowance by the employer).
➤ More articles:
➤ In what cases does the employer transfer the employee to a job that is different from the labor contract?
➤ Summary of administrative penalties for employers who violate the latest labor contracts..
➤ Summary of administrative penalties for employers who violate the latest labor contracts..
➤ Termination of labor contract due to changes in structure and technology.
- Above is THINH TRI LAW FIRM's advice on how to handle invalid labor contracts. Hope this information will be useful to you. If you still have questions about other contents related to the labor contract in accordance with the latest laws, please don't hesitate to contact us:
THINH TRI LAW FIRM
Hotline: 1800 6365
